Criminal Domestic Violence Cases

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Most criminal domestic violence cases start with an arrest and criminal charges for Domestic Violence Acts. There is no crime called domestic violence. These are acts done by one partner to another partner in an “intimate relationship.” (Learn more at Domestic Violence Basics) A criminal court order of protection can be ordered against a person who has been charged with a crime.

A criminal domestic violence case can also start by going to the police or the district attorney to report a crime. The police can charge the other person with a crime and during any of the court appearances in Criminal Court, the court can issue an Order of Protection.

Important! It is best to get help from a domestic violence advocate who knows the process and can support you through the case and help you stay safe. The District Attorney’s Office will have people that can help. And you can visit Domestic Violence Resources to find more help.


Mandatory Arrest

New York State has “mandatory arrest” for domestic violence cases. This means that in an intimate partner relationship the police must make an arrest when:

  • A felony is committed
  • A person disobeys an order of protection by making contact when there is a stay away order
  • A person disobeys an order of protection by committing a family offense crime (see Domestic Violence Acts)

In mandatory arrest cases, even if you ask the police not to make an arrest, they must do so. But, the police don’t have to make an arrest when you don’t want them to if:

  1. There is no order of protection, and
  2. The abuser commits a misdemeanor crime.

The police are not allowed to ask you if you want the abuser arrested or if you want to “press charges.” But, the police can make an arrest if they think that is the best course of action.

A mandatory arrest does not always happen right away. It means that the police must make an arrest even if the abuser leaves before the police arrive.

Whenever the police investigate domestic violence, they must give the victims written notice of their legal rights. See Information for Victims of Domestic Violence.

CPL 140.10(4)


Temporary Order of Protection

There are many different courts that decide criminal cases. The court that decides the case, depends on the charges, the age of the abuser, and where you live. Visit Types of Criminal Courts. After an arrest, the abuser will go in front of a judge. This is called an Arraignment. Unlike a Family Court Case, the case is not between the victim and the abuser. The government, named the “People of the State of New York” starts the case against the defendant. The lawyer for the government is called a prosecutor or assistant district attorney (ADA). The abuser is called the defendant. The victim of abuse is called the complaining witness.

At the arraignment, the judge can either:

  • Set Bail
  • Hold the abuser in jail without bail
  • Release the abuser. If the abuser is released, they must come back to court on a future date.

An arraignment usually takes place within 24 hours of the arrest. The District Attorney asks the judge for a Temporary Order of Protection (TOP) for the victim or complaining witness. The judge decides whether to issue the Order of Protection and what terms and conditions to put in the order.

The Temporary Order of Protection sets the rules the abuser must follow while the order is in effect. The order protects the person the defendant is suspected of harming, their property and in some cases, their children, pets, or other relatives. Learn more at Domestic Violence Order of Protection Basics.

If you are confused about what the terms of the Order of Protection mean, read Understanding the Criminal TOP.

Defendants can find answers to frequently asked questions by reading the Defendant’s Information Sheet.


During the Case

Your case may be sent to a special Domestic Violence courtroom that deals only with these cases. If you have an Order of Protection from both Family Court and a criminal court, your case may be sent to an Integrated Domestic Violence (IDV) courtroom. These courtrooms have better resources for domestic violence cases. Read more about Domestic Violence (DV) and Integrated Domestic Violence (IDV) Courts.

The District Attorney prosecutes the defendant for the crimes. You do not participate in the case other than as a witness. You don’t need an attorney.

No criminal charges can be dropped unless the District Attorney's office and the judge agree to drop the charges. If the charges against the abuser are dropped, the Temporary Order of Protection is no longer in effect.

If the abuser violates the order during the case, the abuser could be charged with criminal contempt. Read Violation of an Order of Protection.


Final Order of Protection

If the abuser is convicted, the judge can order a final Order of Protection, counseling, conditional discharge, a fine, probation and or jail. The judge can also order payment of Restitution to pay you back for medical bills and other costs. The Order can last from 1 year to several years, depending on the crimes. A final Order of Protection is good wherever you go. Even if you travel or move to another state.

If the criminal case is dismissed, the Order of Protection will no longer be in effect.

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